From: Julio Huato raghu wrote:
> I agree and I think Moore is smart for avoiding the "c" word. He talks
> in code so that more people get to listen to him etc. Good for him.
Right. I'd also go after "freedom." We need to replace capitalism
with a free and democratic economy, and then describe a communist
society.
^^^^^
CB: Yes on "freedom". That's our word. The American enslaved Africans
and Civil Rights movement had "freedom" as its main goal. But I
digress.
On freedom we must make the basic materialist argument that in
capitalism, there is no freedom if you don't have a job or enough
income to get the basic material necessities - decent food, decent
shelter, decent clothes, decent health care, decent recreation, decent
education, etc. "Freedom" to sleep under a bridge is not freedom.
You can't enjoy all the wonderful American freedoms if you don't have
a right to a job or income.
In capitalism, where the basic means of production (oops watch that
terminology , Charles) are denied to the vast majority, that majority
_must_ be given jobs or income as a right , because they can't produce
their own necessities.
See my draft 28 Amendment to the US Constitution below BUT DON'T USE
MY TERMINOLOGY; USE MICHAEL MOORE'S TYPE (smile)
^^^^^^^
For a Campaign for a Constitutional Amendment
for a Right to a Earn a Living Wage
by CB
Introduction
The goal of full employment and the highest quality of life for all is
at the heart of our struggle to make human rights more sacred than
property interests. To accomplish this goal in the United States will
take a mass, organized movement that through progressive stages and
leaps reforms and ultimately revolutionizes our relations of
production. An important aspect of this movement will be the legal
forms that come to crystallize and institutionalize the fundamental
economic changes won by the People.
The tactics and strategy in the economic struggle always necessarily
include political and legislative goals. As our efforts address the
most fundamental politicaleconomic issues, it is important that we
have goals, strategy and tactics concerning the most fundamental law
of the land , the Constitution, no matter how much the ruling class is
above even that authority for now.
"Why a right to a job: a historical materialist perspective"
Historical materialists focus on the working class and class struggle
as keys to revolutionary social change in this epoch. This is the
perspective worked out by Engels and Marx which holds that social
ideas, ideals and laws reflect and are ultimately determined ,limited
and changed by changes in the relations and forces of material
production; and not quite equally so vica versa. Thus, historical
materialism sees Constitutional changes, like all legal change, as
ultimately reflecting underlying class struggles. In our era of the
bourgeoisie , we herald the rise of the workingclass to emancipate
itself and all of the oppressed groups and despised classes ( though
taking longer than we thought !)
This approach sees that the U.S. ,connected with most of the globe
more closely than ever, has capitalist relations of production. We
have wage-labor and private ownership of the basic means of
production.
The institution of wage-labor makes the need for a job fundamental for
the overwhelming majority of the population, for they must work for a
liviing. This institution of wage-labor means most people must sell
their labor power to obtain the basic necessities of life, and avoid
personal and social ills. It is not possible for most people to employ
themselves in small, self-sufficient economic units and survive as
they did in earlier societies. The economic system is highly
socialized. That is it consists of a large number of interdependent
economic enterprises of all sizes. This socialization of labor, or
division of labor has reached a new qualitiative level and is in some
sense global today, for example with "world cars" and other
commodities assembled from geographically scattered points of
production. The right to a job is a mature universal human right now.
This is already recognized in Article 23 of the Universal Declaration
of Human Rights and indirectly in the United Nations Charter Articles
55 and 56 on promoting full employment and Article 6 of the
International Convenant on Civil and Political Rights ( See!
_The Guild Practitioner_ vol. 49 number 1 1987, "The Right to Earn a
Living by Sam Rosenwein , "and _Special Issue on New U.S. Human Rights
Laws"_vol. 51, number 3 summer 1994) The right to a job, or to earn a
living, in a world wide web of wage-labor is central in the struggle
for economic and human rights and to ameliorate human suffering. For,
unemployment is a root cause of our most personal and social
tribulations - poverty, hunger, homelessness, urban crisis, crime,
suicide, alcoholism, drug addiction, physical and mental illness, wife
abuse, child abuse, et al.
With the institution of wage-labor , the right to a job is also
fundamental because the exercise of all other basic human rights and
freedoms is dependent upon, first, fulfillment of the basic needs for
material survival - food, shelter, health care, etc. A job is key to
obtaining these. Modern citizens cannot speak, think, vote or travel
freely if they cannot eat. They cannot obtain equality before the law
or due process without legal counsel at costs. A job at a living wage
is a prerequisite for a decent life and for the exercise of all other
human rights and liberties. Institutionalized, continuous denial of
work to millions of people , permanent mass unemployment ( even 4 % is
mass unemployment) is a violation of a most critical human right
undermining all of the human rights of those millions unemployed.
Unemployment is not a necessary part of an efficiently functioning
modern industrial economy as many apologists for the American system
claim. Rather unemployment is the result of an unplanned economy in
which basic production is carried out with the goal of maximizing
accumulation of profit for private corporations and individuals ( See
Perlo _Superprofits and Crises_ International , 1988). Permanent mass
unemployment is also a key tactic for keeping wages down by keeping
the demand for jobs high in relation to the supply of jobs. If there
were full employment, the bosses would have no scabs to hire to break
strikes.
"We Need a Mass Movement to do it "
The masses of people have a basic and objective motivation and need to
support establishing the general right to a job as part of the
fundamental law , the Constitution. We will only have a movement if
the great many become conscious that it is possible to win such a
right, and only if the People wake up from their current Rip Van
Winkle sleep.
Because of its place in production, the working class must lead any
victorious struggle to institute progressive property laws, rights and
the dependent other human rights. To lead, the working class must be
class conscious and organized for struggle as a result of objective
and subjective experience. That consciousness must include awareness
of legal goals, the consciousness taking organizational form as
elements of a political program. Because constitutional amendment
requires 2/3 majority of athe Congress or the state legislatures to
propose an amendment and 3/4 majority of the states for ratification,
it also requires building a mass movement to accomplish. It is a
method for involving masses in making fundamental law as opposed to a
few lawyers arguing before a few judges in courts. It is an inherently
popular tendency in our jurisprudence. Without ignoring the slow pace
of the left movement today and the somnalence of the People, we
prepare this legal strategy for the day when again pro-working class
majorities are active and conscious as in the 1930's.
_Partial History of struggle for full employment_
The famous People's struggles in the era of the Great Depression won a
number of economic reforms. Symbolically, the success and highpoint of
the historical political surge for full employment (the actualization
of the right to a job) in the U.S. can be measured by the fact that in
1944 President Franklin Roosevelt presented to Congress in his State
of the Union address an Economic Bill of Rights and said among other
things:
(quote) We have accepted, so to speak, a second Bill of Rights under
which a new basis of security and prosperity an be established for all
-- regardless of station, race or creed -- the right to a useful and
remunerative job in the industries of shops or farms or mines of the
Nation -- but also to eductation, housing and access to all forms of
public facilities and services. (end quote) ("The Right to Earn a
Living" by Sam Rosenwein _The Guild Practitioner_ Vol 44, number 2
Spring 1987; see also Roosevelt's State of the Union Message of 1941)
According to Bertram Ross in "Rethinking Full Employment" (_The
Nation_ Januray 17, 1987) "the result "of Roosevelt's thrust
"was the introducton in Congress of a full-employment bill. But in
1946 a coalition of conservative lawmakers deleted the "right to
useful and remunerative job" from the original proposal. When finally
passed in diluted form, the Employment Act of 1946 expressed a
commitment not to full employment but to avoiding depression through
the growth of a warfare-welfare state."
In 1978 The Humphrey-Hawkins full employment act was passed which
called for reducing unemployment to 4%. But these two laws are weaker
than the goal that Roosevelt articulated in 1944. The movement for
economic justice that had pushed Roosevelt so far has slowed down
considerably in the decades since. Today one feels that the political
pendulum has swung to the other extreme from the reforms and reformist
atmosphere of the New Deal era. Humphrey-Hawkins is not the household
name it was at one time; and in fact the full employment slogans and
laws have been largely relegated to scofflaw scorn until
neo-liberalism and globalism are overcome by a new movement.
Yet even in this period of ebb for the movment, the Labor Party is
holding up the banner for economic rights, including a proposal for a
Constitutional Amendment for a right to a decent job as it's number
one programmatic element (See the Labor Party web site,
www.labornet.org/lpa/documents/program.html ; See also "The Right to
Work and Earn a Living Wage: A Proposed Consititutional Amendment " by
Prof. William P. Quigley , Director of Gillis Poverty Law Center,
Loyola University School of Law, written in conjunction with the Labor
Party Amendment campaign) In my opinion, this is an important step
forward in the labor movement's legal strategy for economic rights. If
the movement had been able to use its large majorities from the 1930's
to constitutionalize some of the fundamental elements of the New Deal,
the rollback of the New Deal today might not have proceded so far
under Reagan and his successors.
Although we should not delude ourselves that a right to a job and
decent living can be fully guaranteed under capitalist relations of
production, the proposal herein is reformist in form , while radical
in content. I offer it as a reform pregnant with revolution.
In sum, you have to have a job to live. The right to a job is a
radical reform , a fundamental human right and a common sense
necessity concerning which political activists should be able to get
people's attention ,for it is in the interest of the overwhelming
majority.
On the other hand, as we would expect in a society where the
bourgeoisie is the ruling class, the Constitution already reflects,
protects and reproduces the critical bourgeois interests in capitalist
relations of production, the right to private ownership in the basic
means of production which implies the right to seek maximum private
profits and private accumulation of capital through exploitation of
wage laborers. Of course, the Constitution doesn't come right out and
say it this way. I would say that capitalist powers are codified in
the two Fifth Amendment clauses, the Due Process Clause and the
Takings Clause. The Due Process Clause provides that no person
(including corporations) shall be deprived of property without due
process. The Takings Clause provides that no private property shall be
taken for public purpose without just compensation.
Our radical legal goal, stated briefly, must be to establish through
amendment a Constitutional provision on a right to a job and also
provide that it has priority over the right to ownership and control
of private property in the basic means of production. So, for example,
the rights of workers to jobs would take priority over the corporate
prerogative of private property ownership to close a plant, mine, shop
or office.
_Why a constitutional amendment ?_
This proposal for a Constitutional Amendment to protect jobs occurred
to me in the context of the fight against plantclosings in the mid
1980's. As General Motors announced the shocking closing of its
Fleetwood and Cadillac plants in Detroit. Congressperson John Conyers
drafted a bill for a moratorium on plantclosings. Besides the fact
that such a law had little chance of passing a Congress and President
controlled by big business, if such a law did pass, I was sure that it
would be challenged by General Motors as an unconstitutional taking of
private property pursuant to the 5th Amendment. I undertook what
seemed to me my duty as a people's lawyer to prepare a Constitutional
Amendment that could be part of an effective program to protect jobs
and win full employment.
The Constitution's Fifth Amendment Due Process and "Taking" Clauses
make imperative the constitutionalization of the job creation and
protection rights that so many workers have fought for and believed
were theirs for so long. There seems little question that legislation
that challenges the monopolies' prerogatives in use of thier capital,
a necessary element to guarantee jobs and full employment, would be
attacked as unconstitutional based on these Fifth Amendment
provisions.
The clauses are consecutive in the Fifth Amendment as follows:
No person shall... be deprived of life, liberty, or property without
due process of law; nor shall private property be taken for public use
without just compensation.
Throughout their legal history these clauses have been used as a
shield for bourgeois private property. The clauses are used to prevent
use of basic means of production for the general welfare, which today
demands planned management and use of factories, mines, and offices in
a way that everyone is assured an opportunity to do productive labor.
Remedy of this unjust interpretation of the two clauses is complicated
by the fact that the Fifth Amendment clauses make no distinction
between private property in general and PERSONAL property in the
non-legal , lay sense. Personal property is appropriately protected by
the wording of the Fifth Amendment. Personal property should not be
taken without due process or just compensation.
The bourgeoisie and the monopoly media and education propaganda system
exploit public confusion over the distinction between these two types
of property. The capitalists, like wolves in sheeps' clothing, claim
that socialists see individual , personal property (and freedom) , and
corporate/monopoly, private property (and "free" enterprise) as
equivalent lambs to be slaughtered in the communist revolution. Yet,
on the contrary, socialists seek to abolish only private ownership in
the basic means of production not personal property in commodities for
individual consumption, and in the process seek to establish the freer
and fuller all-around development of the individual.
In fact, historicially it is interesting to note that the bourgeoisie
seemingly have from the time of the establishment of the Constitution
played a game of hide and seek concerning private property rights. If
as Herbert Aptheker says ( _Early Years of the Republic_ pages 57 and
60), there was unanimous agreement among the framers of the
Constitution that the purpose of government was to protect private
property then it is remarkable that provision for protection of
private property does not appear in the Constitution before the Bill
of Rights Amendments.
It would seem that protection of private property was thoroughly
provided for in the judge made, common law, where it was hidden from
mass consciousness, perhaps, and known mainly by the elite mandarin
class of lawyers ( See James Lawler's discussion of English, common
law as the obscure and sacrosanct possession of an elite body of
lawyers, in "Freedom and the U.S. Constitution: Aspects of the Legal
Theory of Mitchell Franklin", _The Guild Practitioner_ Fall 1987). For
the framers of the Constitution, who overwhelmingly represented the
propertied classes, to frankly and openly include it in the
Constitution would have amounted to an unnecessary provocation of the
masses, potentially exposing to the working classes a fundamental
secret of the capitalist system of exploitation.
However, perhaps ironically, pehaps purposely, the private property
protection was smuggled into the Constitution, Trojan horse style, by
glossing over the difference between private and personal property, as
described above, and by exploiting the masses' legitimate concern for
protection of their personal property from unjust governmental
seizure. The Fifth Amendment is part of the Bill of Rights, one of the
most distinctive imprints of mass popular strength on the Constitution
at the time of its creation ( See Aptheker op.cit.).
The "bottomline" is that the law has an hierarchical structure.
Obviously, the Constitution prevails over Congressional legislation
when the two are in conflict. Thus, the right to a job must be
elevated to a Constitutional status to avoid being trumped by the
Taking Clause and the Due Process Clause. Otherwise the vast resources
and great energy expended in winning jobs legislation will be wasted
as it is struckdown by a single stroke of Mr. Injustice Rehnquist's
pen.
The Constitution's provision for Amendment (Article V ) was truly
revolutionary for the time that it was enacted and even for today. It
essentially recognized for the first time in history that fundamental
social and political change is inevitable ,and that these changes must
be represented in fundamental law. The Amendment provision has even
been termed revolutionary. As Herbert Aptheker says in _The Early
Years of the Republic_:
(quote) The right of revolution is insisited upon in the writings of
Madison and Jefferson and was stated at this time with particular
clarity by James Wilson, a member of the (Constitutional) Convention,
and later an Associate Justice of the Supreme Court of the United
States: "A revolution principle certainly is, and certainly should be
taught as a principle of the United States, and of every State of the
Union. This revolution principle that the sovereign power residing in
the people, they may change their constitution or govenment whenever
they please, is not a principle of discord, rancor or war. It is a
priniciple of melioration, contentment and peace."... ...These means
to amend the Constitution are to be handled by future generations as
the generation of the (American) Revolution and the Constitution
handled urgent problems before them. Happily, however, and this is one
of the significant results of that Revolution and provisions of that
Constitution, legality is to be on the side of those seeking such
change, be it as fundamental as it may, so long as it reflects the
will of the majority of the people. That is , so long as it does not
violate the basic precept of the Republic, namely, popular
sovereignty. (end quote)
This provision, used justly, makes the Constitution truly alive and
revolution potentially legal. The Amendment provision is a
time-tested, eminently lawful , patriotic American method which must
be seriously considered and used as a good form for peaceful
transition from reforms through democratic revolution. This is an
important consideration when radicals, especially communists, have
been falsely stereotyped as advocating violent and illegal overthrow
of the government. An effort to make radical change through
constitutional amendment is a fundamentally LEGAL radical act.
This provision can be used to make law not a fixed and eternal
"truth", but an evolving developing system reflecting social
development and collective mass action. Some of the most advanced
aspects of U.S. law came through this "revolutionary" process, of
course: the Bill of Rights, the 13th, 14th 15th and 19th Amendments ,
et al. All progressives have an interest in popularizing a
dialectical/historical understanding of law and its specific
manifestation in that form in the Amendment provision.
"Isn't the right to a job already part of the law"
When I first undertook to investigate the right to a job, I thought it
was well-settled in U.S. law that there was none; and even more that
it is well settled that monopoly corporations have a right to
guarantee that a significant number of people will not have a job or
decent income.
However, the former editor of _The Guild Practitioner_ ,Attorney Ann
Fagan Ginger explained to me that the way to succeed in the fight to
get full employment is to argue that full employment is not a new
idea, that it is as old as the Constitution itself or at least as the
concepts of the New Deal (as discussed above) which people desparately
believed were establishing certain economic minimums forever. In other
words, there is customary and legal precedent for a fundamental right
to earn a living. Readers of _The Guild Practitioner_ know that Ginger
is also legendary for founding a new approach to progressive law which
is to use international law especially the United Nations Charter,
conventions/treaties and convenants in U.S. domestic courts ( see
citations on right to a living above). In "Toward An Economic Bill of
Rights Some Legal Bases", ( _The Guild Practitioner_ Vol. 41, number
1, Winter 1984) and "The Right to Earn a Living" ( _The Guild
Practitioner_ vol.44, numbe! r 2 , Spring 1987) Sam Rosenwein makes
this argument based on extensive research into the precedential
authority of U.S. jurisprudence and history , as well as international
treaties.
The current proposal for Constitutional Amendment must not be
considered in contradiction to the approach of Ginger and Rosenwein.
Their method gathers ammunition for progressive lawyers who a are
fighting continuing battles on behalf of economic victims right now.
In those individual cases, nothing should be spared in trying to
persuade individual judges that precedent and reason demand protection
of a right to a living. Furthermore, as Ginger has often explained,
claiming that a right exists in morality and justice, and has existed
for a long time in history as an idea is an important method of
political education and persuasion of the population. Arguing that
racial or gender equality or trade union rights or the right to earn a
living are the "true" American tradition and spirit is important in
many ways. It assures some that they are not doing something crazy or
way out. It counters charges that we are importing a foreign ideology.
It connects us with the majority in hist! ory as well as the present.
It gives confidence that we can win.
There is a limitation to this approach, because in fact, racism/Jim
Crow was the law of the land once, as were and are anti-union and
anti-job right statutes and common law. Otherwise, why have we been
struggling so hard all of these decades ?
In considering the whole body and system of U.S. law and the reality
of the economic system which the law reflects, there is little
question that the vast majority of courts do not recognize the right
to earn a living (citation of General Motors Ypsilanti plantclosing
case) and the courts do recognize a private property right to deny
earning a living. These legal principles are cornerstones of the
capitalist system. To deny that these principles are part of our
system of legal rules would be almost to deny that the U.S. has a
capitalist economic system.
But so what ! In different circumstances we must emphasize different
aspects of, even contradictory aspects of our legal ideology. As I say
above, where arguing an individual case or even bolstering mass
confidence in the morality and justness of the fight for a right to a
job, it is important to emphasize those glimmerings of enlightened
thinking that have appeared once in a while among judges and
legislators in response to mass struggles. It is sometimes important
to argue that the progressive provisions of the Constitution
(including the Preamble) and Declaration of Independence logically
imply although do not say directly and explicitly that there must be
rights to earn a living and decent income (The draft amendment offered
below specifically refers and relies on the Constitutional purposes
,stated in the Preamble , to establish justice, promote the general
Welfare and secure the Blessings of Liberty). It is important to argue
that the well settled international law in UN!
statutes is that there is such a right, and that these laws are part
of U.S.supreme law as treaties,
Yet in considering what must be done to bring mass popular support for
statutory and constitutonal change, we must emphasize that the
overwhelming majority of U.S. judges interpret the law as denying
these rights, notwithstanding that this interpretation is contrary to
the spirit of America's best traditions as Ginger and Rosenwein argue.
In a word, we must not only reinterpret the law, but change it.
_A Draft Amendment_
My draft Constitutional Amendment is as follows:
Amendment XXVIII
Section 1. Every adult American able and willing to earn a living
through paid work has the right to and shall have a free choice among
opportunities for useful, productive and fulfilling paid employment at
decent real wages or for self-employment.
Section 2. Every adult American unable to work for pay or find
employment pursuant to Section 1 has the right to and shall be
provided by the Federal and State governments an adequate standard of
living that rises with increases in the wealth and productivity of
society.
Section 3. Pursuant to the obligation to establish Justice, promote
the general Welfare and secure the Blessings of Liberty, the Federal
and State governments shall serve as the employers of last resort in
insuring fulfillment of Section 1.
Section 4. In a case where Section 1 is in conflict with the Amendment
V provision or Amendment XIV provision reading "Nor shall private
property be taken for public use without just compensation", Section 1
of Amendment XVIII shall prevail
Section 5. In a case where Section 1 is in conflict with the Amendment
V provision or Amendment XIV provision that no person shall be
deprived of property, without due process of law, Section 1 of
Amendment XXVIII shall prevail.
Section 6 The common law doctrine of employment-at-will is hereby
abolished. All employment discharge shall be with just cause.
Section 7. The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.
Time does not permit an extensive discussion of a number of issues and
questions raised by this draft. I will do an abbrievated annotation of
the proposed amendment.
The language in Sections 1 and 2 is based on The Income and Jobs
Action Act, a bill introduced by Congressmembers John Conyers of
Michigan and Charles Hayes of Illinois in the mid 1980's. Regarding
that wording , Bertram Gross said in the second part of his two part
article in _The Nation_ on the Hayes-Conyers Bill ( "Making an Issue
of Full Employment) said:
"...First, it replaces the old "right to a job" with the "right to
earn a living", as suggested by Ann Fagan Ginger of the Meiklejohn
Civil Liberties Institute. Income rights for those unable to work for
pay or find a suitable job are defined in terms of "an adequate
standard of living that rises with increases in the wealth and
productivity of the society." In uniting job rights and income rights,
it strengthens each concept."
I have merely proposed constitutionalizing the "Fundamental Rights"
section of the Hayes-Conyers bill ( The Quality of Life Action Act or
The Income and Jobs Action Act).
This draft Constitutional Amendment for a Right to Earn a Living ,
pursuant to its Section 7 envisions comprehensive implementation by
Congressional Acts , such as the bills of Hayes and Conyers (HR 1398
of 1986 and HR 2870 of 1987 the Economic Bill of Rights Act" );or
former Congressperson Ronald Dellums' A Living Wage, Jobs For All Act
of 1997 (HR 1050); or the Jobs Bill of Congressmember _______ Martinez
of Texas. The Living Wage Ordinances now sweeping the country could
even play a role in fulfilling the broad Constitutional mandate.
This draft might be expanded to a full 2nd Constitutional Bill of
Rights, an Economic Bill of Rights, as President Roosevelt anticipated
in his State of the Union Messages in 1941 and 1944.
Employment law Attorney Larry Daves suggested the inclusion of the
provision abolishing the employment-at-will doctrine.
This is truly a draft and I welcome comments , criticisms and
suggestions from readers of this article.
_Conclusion_
The jobs movement's legal aims must be well chosen. The substance of
the movement has been shaped by U.S. social and economic reality - the
history of struggle and the development of the relations and forces of
production. We are ripe for a right to a job. But the legal form must
be as profound as the substance. In the U.S. rights are made legally
most binding not only by statute, but by making them part of the
Constitution. When the People rise the next time, let the People's
lawyers be prepared with our writs.
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